The Debate Over the Separation of Powers: The French Revolution at Odds with Montesquieu

Abstract Why was Montesquieu so unfavorably cited by the French Revolutionaries when he was seen as a model for the American Founding? When they drafted a constitution that departed from his principles on the monarchical government, did they misunderstand his teaching or want to distance themselves from him? Analyzing their discourses in context allows us to illuminate what rhetorical strategies they deployed regarding Montesquieu’s writing. First, the early French Revolutionary did not want to take him as their model because he had been the champion of the Privileged during the Prerevolution. Second and more substantially, they did not embrace the same conception of the separation of powers as Montesquieu, or as the Founding Fathers. Therefore, the phrase “separation of powers” had a different meaning in France and in America during the Era of Revolutions. For the French, a conception of the separation of powers as dual, executive and legislative, was useful for refusing legislative power to the king, the Parlements and the Nobility. However, the Founding Fathers defended a tripartite conception of the separation of powers, wanting an independent judiciary and accepting judge-made law – which was the model for Montesquieu’s monarchical government. Third, in France, as the political context evolved, so did the definition of the separation of powers. After they had stripped Parlements of any power, and as they became increasingly wary of giving power to the king, the Patriots resuscitated the tripartite separation of powers to keep judges away from the king. To convince the vindicators of the royal prerogative, they did not hesitate to weaponize Montesquieu.